Amendment
Bill No. 0463
Amendment No. 866277
CHAMBER ACTION
Senate House
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1Representative Simmons offered the following:
2
3     Amendment (with title amendment)
4     Remove the entire body and insert:
5     Section 1.  Subsection (3) of section 394.455, Florida
6Statutes, is amended, and subsections (31) and (32) are added to
7that section, to read:
8     394.455  Definitions.--As used in this part, unless the
9context clearly requires otherwise, the term:
10     (3)  "Clinical record" means all parts of the record
11required to be maintained and includes all medical records,
12progress notes, charts, and admission and discharge data, and
13all other information recorded by a facility which pertains to
14the patient's hospitalization or and treatment.
15     (31)  "Service provider" means any public or private
16receiving facility, an entity under contract with the Department
17of Children and Family Services to provide mental health
18services, a clinical psychologist, a clinical social worker, a
19physician, psychiatric nurse as defined in subsection (23), or a
20community mental health center or clinic as defined in this
21part.
22     (32)  "Involuntary examination" means an examination
23performed under s. 394.463 to determine if an individual
24qualifies for involuntary inpatient treatment under s.
25394.467(1) or involuntary outpatient treatment under s.
26394.4655(1).
27     (33)  "Involuntary placement" means either involuntary
28outpatient treatment pursuant to s. 394.4655 or involuntary
29inpatient treatment pursuant to s. 394.467.
30     Section 2.  Subsections (1) and (7) of section 394.4598,
31Florida Statutes, are amended to read:
32     394.4598  Guardian advocate.--
33     (1)  The administrator may petition the court for the
34appointment of a guardian advocate based upon the opinion of a
35psychiatrist that the patient is incompetent to consent to
36treatment. If the court finds that a patient is incompetent to
37consent to treatment and has not been adjudicated incapacitated
38and a guardian with the authority to consent to mental health
39treatment appointed, it shall appoint a guardian advocate. The
40patient has the right to have an attorney represent him or her
41at the hearing. If the person is indigent, the court shall
42appoint the office of the public defender to represent him or
43her at the hearing. The patient has the right to testify, cross-
44examine witnesses, and present witnesses. The proceeding shall
45be recorded either electronically or stenographically, and
46testimony shall be provided under oath. One of the professionals
47authorized to give an opinion in support of a petition for
48involuntary placement, as described in s. 394.4655 or s.
49394.467(2), must testify. A guardian advocate must meet the
50qualifications of a guardian contained in part IV of chapter
51744, except that a professional referred to in this part, an
52employee of the facility providing direct services to the
53patient under this part, a departmental employee, a  facility
54administrator, or member of the Florida local advocacy council
55shall not be appointed. A person who is appointed as a guardian
56advocate must agree to the appointment.
57     (7)  The guardian advocate shall be discharged when the
58patient is discharged from an order for involuntary outpatient
59placement or involuntary inpatient placement a receiving or
60treatment facility to the community or when the patient is
61transferred from involuntary to voluntary status. The court or a
62hearing officer shall consider the competence of the patient
63pursuant to subsection (1) and may consider an involuntarily
64placed patient's competence to consent to treatment at any
65hearing. Upon sufficient evidence, the court may restore, or the
66hearing officer may recommend that the court restore, the
67patient's competence. A copy of the order restoring competence
68or the certificate of discharge containing the restoration of
69competence shall be provided to the patient and the guardian
70advocate.
71     Section 3.  Subsection (3) of section 394.4615, Florida
72Statutes, is amended to read:
73     394.4615  Clinical records; confidentiality.--
74     (3)  Information from the clinical record may be released
75in the following circumstances when:
76     (a)  When a patient has declared an intention to harm other
77persons.  When such declaration has been made, the administrator
78may authorize the release of sufficient information to provide
79adequate warning to the person threatened with harm by the
80patient.
81     (b)  When the administrator of the facility or secretary of
82the department deems release to a qualified researcher as
83defined in administrative rule, an aftercare treatment provider,
84or an employee or agent of the department is necessary for
85treatment of the patient, maintenance of adequate records,
86compilation of treatment data, aftercare planning, or evaluation
87of programs.
88
89For the purpose of determining whether a person meets the
90criteria for involuntary outpatient placement or for preparing
91the proposed treatment plan pursuant to s. 394.4655, the
92clinical record may be released to the state attorney, the
93public defender or the patient's private legal counsel, the
94court, and to the appropriate mental health professionals,
95including the service provider identified in s.
96394.4655(6)(b)2., in accordance with state and federal law.
97     Section 4.  Subsection (1) and paragraphs (e), (g), and (i)
98of subsection (2) of section 394.463, Florida Statutes, are
99amended to read:
100     394.463  Involuntary examination.--
101     (1)  CRITERIA.--A person may be taken to a receiving
102facility for involuntary examination if there is reason to
103believe that the person has a mental illness he or she is
104mentally ill and because of his or her mental illness:
105     (a)1.  The person has refused voluntary examination after
106conscientious explanation and disclosure of the purpose of the
107examination; or
108     (b)2.  The person is unable to determine for himself or
109herself whether examination is necessary; and
110     (c)(b)  Based on the person's current reported or observed
111behavior, considering any mental health history, there is a
112substantial likelihood that without care or treatment:
113     1.  Without care or treatment, The person will is likely to
114suffer from neglect or refuse to care for himself or herself;
115such neglect or refusal will pose poses a real and present
116threat of substantial harm to his or her well-being; and it is
117not apparent that such harm may be avoided through the help of
118willing family members or friends or the provision of other
119services; or
120     2.  There is a substantial likelihood that without care or
121treatment The person will cause serious bodily harm to himself
122or herself or others in the near future, as evidenced by recent
123behavior.
124     (2)  INVOLUNTARY EXAMINATION.--
125     (e)  The Agency for Health Care Administration shall
126receive and maintain the copies of ex parte orders, involuntary
127outpatient placement orders issued pursuant to s. 394.4655,
128involuntary inpatient placement orders issued pursuant to s.
129394.467, professional certificates, and law enforcement
130officers' reports.  These documents shall be considered part of
131the clinical record, governed by the provisions of s. 394.4615.  
132The agency shall prepare annual reports analyzing the data
133obtained from these documents, without information identifying
134patients, and shall provide copies of reports to the department,
135the President of the Senate, the Speaker of the House of
136Representatives, and the minority leaders of the Senate and the
137House of Representatives.
138     (g)  A person for whom an involuntary examination has been
139initiated who is being evaluated or treated at a hospital for an
140emergency medical condition specified in s. 395.002 must be
141examined by a receiving facility within 72 hours.  The 72-hour
142period begins when the patient arrives at the hospital and
143ceases when the attending physician documents that the patient
144has an emergency medical condition. If the patient is examined
145at a hospital providing emergency medical services by a
146professional qualified to perform an involuntary examination and
147is found as a result of that examination not to meet the
148criteria for involuntary outpatient placement pursuant to s.
149394.4655(1) or involuntary inpatient placement pursuant to s.
150394.467(1), the patient may be offered voluntary placement, if
151appropriate, or released directly from the hospital providing
152emergency medical services.  The finding by the professional
153that the patient has been examined and does not meet the
154criteria for involuntary inpatient placement or involuntary
155outpatient placement must be entered into the patient's clinical
156record. Nothing in this paragraph is intended to prevent a
157hospital providing emergency medical services from appropriately
158transferring a patient to another hospital prior to
159stabilization, provided the requirements of s. 395.1041(3)(c)
160have been met.
161     (i)  Within the 72-hour examination period or, if the 72
162hours ends on a weekend or holiday, no later than the next
163working day thereafter, one of the following actions must be
164taken, based on the individual needs of the patient:
165     1.  The patient shall be released, unless he or she is
166charged with a crime, in which case the patient shall be
167returned to the custody of a law enforcement officer;
168     2.  The patient shall be released, subject to the
169provisions of subparagraph 1., for voluntary outpatient
170treatment;
171     3.  The patient, unless he or she is charged with a crime,
172shall be asked to give express and informed consent to placement
173as a voluntary patient, and, if such consent is given, the
174patient shall be admitted as a voluntary patient; or
175     4.  If treatment is deemed necessary and the patient has
176failed to consent to voluntary inpatient or outpatient
177treatment, a petition for involuntary placement must be filed in
178the circuit court. The petition must seek involuntary placement
179of the patient in the least restrictive treatment consistent
180with the optimum improvement of the patient's condition. A
181petition for involuntary outpatient placement shall be filed by
182one of the petitioners specified in s. 394.4655(3)(a). A
183petition for involuntary inpatient placement shall be filed by
184the facility administrator. A petition for involuntary placement
185shall be filed in the appropriate court by the facility
186administrator when treatment is deemed necessary; in which case,
187the least restrictive treatment consistent with the optimum
188improvement of the patient's condition shall be made available.
189     Section 5.  Section 394.4655, Florida Statutes, is created
190to read:
191     394.4655  Involuntary outpatient placement.--
192     (1)  CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A
193person may be ordered to involuntary outpatient placement upon a
194finding of the court that by clear and convincing evidence:
195     (a)  The person is 18 years of age or older;
196     (b)  The person has a mental illness;
197     (c)  The person is unlikely to survive safely in the
198community without supervision, based on a clinical
199determination;
200     (d)  The person has a history of lack of compliance with
201treatment for mental illness;
202     (e)  The person has:
203     1.  At least twice within the immediately preceding 36
204months been involuntarily admitted to a receiving or treatment
205facility as defined in s. 394.455, or has received mental health
206services in a forensic or correctional facility. The 36-month
207period does not include any period during which the person was
208admitted or incarcerated; or
209     2.  Engaged in one or more acts of serious violent behavior
210toward self or others, or attempts at serious bodily harm to
211himself or herself or others, within the preceding 36 months;
212     (f)  The person is, as a result of his or her mental
213illness, unlikely to voluntarily participate in the recommended
214treatment pursuant to the treatment plan;
215     (g)  In view of the person's treatment history and current
216behavior, the person is in need of involuntary outpatient
217placement in order to prevent a relapse or deterioration that
218would be likely to result in serious bodily harm to himself or
219herself or others, or a substantial harm to his or her well-
220being as set forth in s. 394.463(1);
221     (h)  It is likely that the person will benefit from
222involuntary outpatient placement; and
223     (i)  All available less restrictive alternatives that would
224offer an opportunity for improvement of his or her condition
225have been judged to be inappropriate or unavailable.
226     (2)  INVOLUNTARY OUTPATIENT PLACEMENT.--
227     (a)  From a receiving facility.--A patient may be retained
228by a receiving facility upon the recommendation of the
229administrator of a receiving facility where the patient has been
230examined and after adherence to the notice of hearing procedures
231provided in s. 394.4599. The recommendation must be supported by
232the opinion of a psychiatrist and the second opinion of a
233clinical psychologist or another psychiatrist, both of whom have
234personally examined the patient within the preceding 72 hours,
235that the criteria for involuntary outpatient placement are met.
236However, in a county having a population of fewer than 50,000,
237if the administrator certifies that no psychiatrist or clinical
238psychologist is available to provide the second opinion, the
239second opinion may be provided by a licensed physician who has
240postgraduate training and experience in diagnosis and treatment
241of mental and nervous disorders or by a nurse providing
242psychiatric services consistent with s. 394.455(23). Such a
243recommendation must be entered on an involuntary outpatient
244placement certificate, which certificate must authorize the
245receiving facility to retain the patient pending completion of a
246hearing. If the patient has been stabilized and no longer meets
247the criteria for involuntary examination pursuant to s.
248394.463(1), the patient must be released from the receiving
249facility while awaiting the hearing for involuntary outpatient
250placement.
251     (b)  Voluntary examination for outpatient placement.--If
252such an arrangement can be made, a patient may choose to be
253examined on an outpatient basis for an involuntary outpatient
254placement certificate. The certificate must be supported by the
255opinion of a psychiatrist and the second opinion of a clinical
256psychologist or another psychiatrist, both of whom have
257personally examined the patient within the preceding 7 calendar
258days, that the criteria for involuntary outpatient placement are
259met. However, in a county having a population of fewer than
26050,000, if the psychiatrist certifies that no psychiatrist or
261clinical psychologist is available to provide the second
262opinion, the second opinion may be provided by a licensed
263physician who has postgraduate training and experience in
264diagnosis and treatment of mental and nervous disorders or by a
265psychiatric nurse as defined s. 394.455(23).
266     (c)  From a treatment facility.--If a patient in
267involuntary inpatient placement meets the criteria for
268involuntary outpatient placement, the administrator of the
269treatment facility may, before the expiration of the period
270during which the treatment facility is authorized to retain the
271patient, recommend involuntary outpatient placement. The
272recommendation must be supported by the opinion of a
273psychiatrist and the second opinion of a clinical psychologist
274or another psychiatrist, both of whom have personally examined
275the patient within the preceding 72 hours, that the criteria for
276involuntary outpatient placement are met. However, in a county
277having a population of fewer than 50,000, if the administrator
278certifies that no psychiatrist or clinical psychologist is
279available to provide the second opinion, the second opinion may
280be provided by a licensed physician who has postgraduate
281training and experience in diagnosis and treatment of mental and
282nervous disorders or by a psychiatric nurse as defined in s.
283394.455(23). Such a recommendation must be entered on an
284involuntary outpatient placement certificate.
285     (3)  PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.--
286     (a)  A petition for involuntary outpatient placement may be
287filed by:
288     1.  The administrator of a receiving facility pursuant to
289paragraph(2)(a);
290     2.  One of the examining professionals for persons examined
291on a voluntary outpatient basis pursuant to paragraph (2)(b).
292Upon filing the petition, the examining professional shall
293provide a copy of the petition to the administrator of the
294receiving facility or designated department representative that
295will identify the service provider for the involuntary
296outpatient placement unless the person is otherwise
297participating in outpatient psychiatric treatment and is not in
298need of public financing for that treatment, in which case the
299individual, if eligible, may be involuntarily committed to the
300existing psychiatric treatment relationship; or
301     3.  The administrator of a treatment facility pursuant to
302paragraph(2)(c). Upon filing the petition, the administrator
303shall provide a copy of the petition to the administrator of the
304receiving facility or designated department representative that
305will identify the service provider for the involuntary
306outpatient placement unless the person is otherwise
307participating in outpatient psychiatric treatment and is not in
308need of public financing for that treatment, in which case the
309individual, if eligible, may be involuntarily committed to the
310existing psychiatric treatment relationship.
311     (b)  Each required criterion for involuntary outpatient
312placement must be alleged and substantiated in the petition for
313involuntary outpatient placement. A copy of the certificate
314recommending involuntary outpatient placement completed by a
315qualified professional specified in subsection (2) must be
316attached to the petition. A copy of the treatment plan specified
317in subparagraph (6)(b)2. must be attached to the petition. At
318the time the petition is filed, the service provider shall
319certify that the services in the proposed treatment plan are
320available. If the necessary services are not available in the
321patient's local community to respond to the person's individual
322needs, the petition may not be filed.
323     (c)  The petition for involuntary outpatient placement must
324be filed in the county where the patient is located. When the
325petition has been filed, the clerk of the court shall provide
326copies of the petition and the proposed treatment plan to the
327department, the patient, the patient's guardian or
328representative, and the state attorney and public defender of
329the judicial circuit in which the patient is located. A fee may
330not be charged for filing a petition under this subsection.
331     (4)  APPOINTMENT OF COUNSEL.--Within 1 court working day
332after the filing of a petition for involuntary outpatient
333placement, the court shall appoint the public defender to
334represent the person who is the subject of the petition, unless
335the person is otherwise represented by counsel. The clerk of the
336court shall immediately notify the public defender of the
337appointment. The public defender shall represent the person
338until the petition is dismissed, the court order expires, or the
339patient is discharged from involuntary outpatient placement. An
340attorney who represents the patient shall have access to the
341patient, witnesses, and records relevant to the presentation of
342the patient's case and shall represent the interests of the
343patient, regardless of the source of payment to the attorney.
344     (5)  CONTINUANCE OF HEARING.--The patient is entitled, with
345the concurrence of the patient's counsel, to at least one
346continuance of the hearing. The continuance shall be for a
347period of up to 4 weeks.
348     (6)  HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.--
349     (a)1.  The court shall hold the hearing on involuntary
350outpatient placement within 5 days, unless a continuance is
351granted. The hearing shall be held in the county where the
352patient is located, shall be as convenient to the patient as is
353consistent with orderly procedure, and shall be conducted in
354physical settings not likely to be injurious to the patient's
355condition. If the court finds that the patient's attendance at
356the hearing is not consistent with the best interests of the
357patient and if the patient's counsel does not object, the court
358may waive the presence of the patient from all or any portion of
359the hearing. The state attorney for the circuit in which the
360patient is located shall represent the state, rather than the
361petitioner, as the real party in interest in the proceeding.
362     2.  The court may appoint a master to preside at the
363hearing. One of the professionals who executed the involuntary
364outpatient placement certificate shall be a witness. The patient
365and the patient's guardian or representative shall be informed
366by the court of the right to an independent expert examination.
367If the patient cannot afford such an examination, the court
368shall provide for one. The independent expert's report shall be
369confidential and not discoverable, unless the expert is to be
370called as a witness for the patient at the hearing. The court
371shall allow testimony from individuals, including family
372members, deemed by the court to be relevant under state law,
373regarding the person's prior history and how that prior history
374relates to the person's current condition. The testimony in the
375hearing must be given under oath, and the proceedings must be
376recorded. The patient may refuse to testify at the hearing.
377     (b)1.  If the court concludes that the patient meets the
378criteria for involuntary outpatient placement pursuant to
379subsection (1), the court shall issue an order for involuntary
380outpatient placement. The court order shall be for a period of
381up to 6 months. The service provider shall discharge a patient
382from involuntary outpatient treatment any time the patient no
383longer meets the criteria for involuntary placement.
384     2.  The administrator of a receiving facility or a
385designated department representative shall identify the service
386provider that will have primary responsibility for service
387provision under the order. The service provider shall prepare a
388written proposed treatment plan and submit it before the hearing
389for the court's consideration for inclusion in the involuntary
390outpatient placement order. The service provider shall also
391provide a copy of the proposed treatment plan to the petitioner.
392The treatment plan must specify the nature and extent of the
393patient's mental illness. The treatment plan may include
394provisions for case management, intensive case management, or
395assertive community treatment. The treatment plan may also
396require that the patient make use of a service provider to
397supply any or all of the following categories of services to the
398individual: medication; periodic urinalysis to determine
399compliance with treatment; individual or group therapy; day or
400partial-day programming activities; educational and vocational
401training or activities; alcohol or substance abuse treatment and
402counseling and periodic tests for the presence of alcohol or
403illegal drugs for persons with a history of alcohol or substance
404abuse; supervision of living arrangements; and any other
405services prescribed to treat the person's mental illness and to
406assist the person in living and functioning in the community or
407to attempt to prevent a relapse or deterioration. Service
408providers may select and provide supervision to other
409individuals, not enumerated in this sub-subparagraph, to
410implement specific aspects of the treatment plan, such as
411medication monitoring. The services in the treatment plan must
412be deemed to be clinically appropriate by a physician, clinical
413psychologist, psychiatric nurse as defined in s. 394.455(23), or
414clinical social worker who consults with, or is employed or
415contracted by, the service provider. The service provider must
416certify to the court in the proposed treatment plan whether
417sufficient services for improvement and stabilization are
418currently available and whether the service provider agrees to
419provide those services. If the service provider certifies that
420the services in the proposed treatment plan are not available,
421the petitioner shall withdraw the petition. The court may not
422order the department or the service provider to provide services
423if the program or service is not available in the patient's
424local community, if there is no space available in the program
425or service for the patient, or if funding is not available for
426the program or service. A copy of the order must be sent to the
427Agency for Health Care Administration by the service provider
428within 1 working day after it is received from the court. After
429the placement order is issued, the service provider and the
430patient may modify provisions of the treatment plan. For any
431material modification of the treatment plan to which the patient
432or the patient's guardian advocate, if appointed, does agree,
433the service provider shall send notice of the modification to
434the court. Any material modifications of the treatment plan
435which are contested by the patient or the patient's guardian
436advocate, if appointed, shall be in writing and prepared by the
437service provider or administrator for approval by the court.
438     3.  If, in the clinical judgment of a physician, the
439patient has failed or has refused to comply with the treatment
440ordered by the court, and, in the clinical judgment of the
441physician or clinical psychologist with a Ph.D., Psy.D., or
442Ed.D., efforts were made to solicit compliance and the patient
443may meet the criteria for involuntary examination, a person may
444be brought to a receiving facility pursuant to s. 394.463. If,
445after examination, the patient does not meet the criteria for
446involuntary inpatient placement pursuant to s. 394.467, the
447patient must be discharged from the receiving facility. The
448service provider must determine whether modifications should be
449made to the existing treatment plan and must attempt to continue
450to engage the patient in treatment. For any material
451modification of the treatment plan to which the patient or the
452patient's guardian advocate, if appointed, does agree, the
453service provider shall send notice of the modification to the
454court. Any material modifications of the treatment plan which
455are contested by the patient or the patient's guardian advocate,
456if appointed, must be approved by the court.
457     (c)  If, at any time before the conclusion of the initial
458hearing on involuntary outpatient placement, it appears to the
459court that the person does not meet the criteria for involuntary
460outpatient placement under this section but, instead, meets the
461criteria for involuntary inpatient placement, the court may
462order the person admitted for involuntary inpatient examination
463under s. 394.463. If the person instead meets the criteria for
464involuntary assessment, protective custody, or involuntary
465admission pursuant to s. 397.675, the court may order the person
466to be admitted for involuntary assessment for a period of 5 days
467pursuant to s. 397.6811. Thereafter, all proceedings shall be
468governed by chapter 397.
469     (d)  At the hearing on involuntary outpatient placement,
470the court shall consider testimony and evidence regarding the
471patient's competence to consent to treatment. If the court finds
472that the patient is incompetent to consent to treatment, it
473shall appoint a guardian advocate as provided in s. 394.4598.
474The guardian advocate shall be appointed or discharged in
475accordance with s. 394.4598.
476     (e)  The administrator of the receiving facility or the
477designated department representative shall provide a copy of the
478court order and adequate documentation of a patient's mental
479illness to the service provider for involuntary outpatient
480placement. Such documentation must include any advance
481directives made by the patient, a psychiatric evaluation of the
482patient, and any evaluations of the patient performed by a
483clinical psychologist or a clinical social worker.
484     (7)  PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
485PLACEMENT.--
486     (a)  If the person continues to meet the criteria for
487involuntary outpatient placement, the service provider shall,
488before the expiration of the period during which the treatment
489is ordered for the person, file in the circuit court a continued
490involuntary outpatient placement certificate which shall be
491accompanied by a statement from the person's physician or
492clinical psychologist justifying the request, a brief
493description of the patient's treatment during the time he or she
494was involuntarily placed, and an individualized plan of
495continued treatment.
496     (b)  Within 1 court working day after the filing of a
497petition for continued involuntary outpatient placement, the
498court shall appoint the public defender to represent the person
499who is the subject of the petition, unless the person is
500otherwise represented by counsel. The clerk of the court shall
501immediately notify the public defender of such appointment. The
502public defender shall represent the person until the petition is
503dismissed or the court order expires or the patient is
504discharged from involuntary outpatient placement. Any attorney
505representing the patient shall have access to the patient,
506witnesses, and records relevant to the presentation of the
507patient's case and shall represent the interests of the patient,
508regardless of the source of payment to the attorney.
509     (c)  Hearings on petitions for continued involuntary
510outpatient placement shall be before the circuit court. The
511court may appoint a master to preside at the hearing. The
512procedures for obtaining an order pursuant to this paragraph
513shall be in accordance with subsection (6), except that the time
514period included in paragraph (1)(e) is not applicable in
515determining the appropriateness of additional periods of
516involuntary outpatient placement.
517     (d)  Notice of the hearing shall be provided as set forth
518in s. 394.4599. The patient and the patient's attorney may agree
519to a period of continued outpatient placement without a court
520hearing.
521     (e)  The same procedure shall be repeated before the
522expiration of each additional period the patient is placed in
523treatment.
524     (f)  If the patient has previously been found incompetent
525to consent to treatment, the court shall consider testimony and
526evidence regarding the patient's competence. Section 394.4598
527governs the discharge of the guardian advocate if the patient's
528competency to consent to treatment has been restored.
529     Section 6.  Section 394.467, Florida Statutes, is amended
530to read:
531     394.467  Involuntary inpatient placement.--
532     (1)  CRITERIA.--A person may be involuntarily placed in
533involuntary inpatient placement for treatment upon a finding of
534the court by clear and convincing evidence that:
535     (a)  He or she is mentally ill and because of his or her
536mental illness:
537     1.a.  He or she has refused voluntary placement for
538treatment after sufficient and conscientious explanation and
539disclosure of the purpose of placement for treatment; or
540     b.  He or she is unable to determine for himself or herself
541whether placement is necessary; and
542     2.a.  He or she is manifestly incapable of surviving alone
543or with the help of willing and responsible family or friends,
544including available alternative services, and, without
545treatment, is likely to suffer from neglect or refuse to care
546for himself or herself, and such neglect or refusal poses a real
547and present threat of substantial harm to his or her well-being;
548or
549     b.  There is substantial likelihood that in the near future
550he or she will inflict serious bodily harm on himself or herself
551or another person, as evidenced by recent behavior causing,
552attempting, or threatening such harm; and
553     (b)  All available less restrictive treatment alternatives
554which would offer an opportunity for improvement of his or her
555condition have been judged to be inappropriate.
556     (2)  ADMISSION TO A TREATMENT FACILITY.--A patient may be
557retained by a receiving facility or involuntarily placed in a
558treatment facility upon the recommendation of the administrator
559of a receiving facility where the patient has been examined and
560after adherence to the notice and hearing procedures provided in
561s. 394.4599. The recommendation must be supported by the opinion
562of a psychiatrist or a clinical psychologist with a Ph.D.,
563Psy.D., or Ed.D. and the second opinion of a clinical
564psychologist or another psychiatrist, both of whom have
565personally examined the patient within the preceding 72 hours,
566that the criteria for involuntary inpatient placement are met.  
567However, in counties of less than 50,000 population, if the
568administrator certifies that no psychiatrist or clinical
569psychologist is available to provide the second opinion, such
570second opinion may be provided by a licensed physician with
571postgraduate training and experience in diagnosis and treatment
572of mental and nervous disorders or by a psychiatric nurse as
573defined in s. 394.455(23).  Such recommendation shall be entered
574on an involuntary inpatient placement certificate, which
575certificate shall authorize the receiving facility to retain the
576patient pending transfer to a treatment facility or completion
577of a hearing.
578     (3)  PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.--The
579administrator of the facility shall file a petition for
580involuntary inpatient placement in the court in the county where
581the patient is located.  Upon filing, the clerk of the court
582shall provide copies to the department, the patient, the
583patient's guardian or representative, and the state attorney and
584public defender of the judicial circuit in which the patient is
585located.  No fee shall be charged for the filing of a petition
586under this subsection.
587     (4)  APPOINTMENT OF COUNSEL.--Within 1 court working day
588after the filing of a petition for involuntary inpatient
589placement, the court shall appoint the public defender to
590represent the person who is the subject of the petition, unless
591the person is otherwise represented by counsel.  The clerk of
592the court shall immediately notify the public defender of such
593appointment. Any attorney representing the patient shall have
594access to the patient, witnesses, and records relevant to the
595presentation of the patient's case and shall represent the
596interests of the patient, regardless of the source of payment to
597the attorney.
598     (5)  CONTINUANCE OF HEARING.--The patient is entitled, with
599the concurrence of the patient's counsel, to at least one
600continuance of the hearing.  The continuance shall be for a
601period of up to 4 weeks.
602     (6)  HEARING ON INVOLUNTARY INPATIENT PLACEMENT.--
603     (a)1.  The court shall hold the hearing on involuntary
604inpatient placement within 5 days, unless a continuance is
605granted.  The hearing shall be held in the county where the
606patient is located and shall be as convenient to the patient as
607may be consistent with orderly procedure and shall be conducted
608in physical settings not likely to be injurious to the patient's
609condition.  If the court finds that the patient's attendance at
610the hearing is not consistent with the best interests of the
611patient, and the patient's counsel does not object, the court
612may waive the presence of the patient from all or any portion of
613the hearing.  The state attorney for the circuit in which the
614patient is located shall represent the state, rather than the
615petitioning facility administrator, as the real party in
616interest in the proceeding.
617     2.  The court may appoint a master to preside at the
618hearing. One of the professionals who executed the involuntary
619inpatient placement certificate shall be a witness.  The patient
620and the patient's guardian or representative shall be informed
621by the court of the right to an independent expert examination.  
622If the patient cannot afford such an examination, the court
623shall provide for one. The independent expert's report shall be
624confidential and not discoverable, unless the expert is to be
625called as a witness for the patient at the hearing. The
626testimony in the hearing must be given under oath, and the
627proceedings must be recorded. The patient may refuse to testify
628at the hearing.
629     (b)  If the court concludes that the patient meets the
630criteria for involuntary inpatient placement, it shall order
631that the patient be transferred to a treatment facility or, if
632the patient is at a treatment facility, that the patient be
633retained there or be treated at any other appropriate receiving
634or treatment facility, or that the patient receive services from
635a receiving or treatment facility, on an involuntary basis, for
636a period of up to 6 months. The order shall specify the nature
637and extent of the patient's mental illness. The facility shall
638discharge a patient any time the patient no longer meets the
639criteria for involuntary inpatient placement, unless the patient
640has transferred to voluntary status.
641     (c)  If at any time prior to the conclusion of the hearing
642on involuntary inpatient placement it appears to the court that
643the person does not meet the criteria for involuntary inpatient
644placement under this section, but instead meets the criteria for
645involuntary outpatient placement, the court may order the person
646evaluated for involuntary outpatient placement pursuant to s.
647394.4655. The petition and hearing procedures set forth in s.
648394.4655 shall apply. If the person placement under this
649chapter, but instead meets the criteria for involuntary
650assessment, protective custody, or involuntary admission
651pursuant to s. 397.675, then the court may order the person to
652be admitted for involuntary assessment for a period of 5 days
653pursuant to s. 397.6811.  Thereafter, all proceedings shall be
654governed by chapter 397.
655     (d)  At the hearing on involuntary inpatient placement, the
656court shall consider testimony and evidence regarding the
657patient's competence to consent to treatment.  If the court
658finds that the patient is incompetent to consent to treatment,
659it shall appoint a guardian advocate as provided in s. 394.4598.
660     (e)  The administrator of the receiving facility shall
661provide a copy of the court order and adequate documentation of
662a patient's mental illness to the administrator of a treatment
663facility whenever a patient is ordered for involuntary inpatient
664placement, whether by civil or criminal court.  Such
665documentation shall include any advance directives made by the
666patient, a psychiatric evaluation of the patient, and any
667evaluations of the patient performed by a clinical psychologist
668or a clinical social worker. The administrator of a treatment
669facility may refuse admission to any patient directed to its
670facilities on an involuntary basis, whether by civil or criminal
671court order, who is not accompanied at the same time by adequate
672orders and documentation.
673     (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
674PLACEMENT.--
675     (a)  Hearings on petitions for continued involuntary
676inpatient placement shall be administrative hearings and shall
677be conducted in accordance with the provisions of s. 120.57(1),
678except that any order entered by the hearing officer shall be
679final and subject to judicial review in accordance with s.
680120.68.  Orders concerning patients committed after successfully
681pleading not guilty by reason of insanity shall be governed by
682the provisions of s. 916.15.
683     (b)  If the patient continues to meet the criteria for
684involuntary inpatient placement, the administrator shall, prior
685to the expiration of the period during which the treatment
686facility is authorized to retain the patient, file a petition
687requesting authorization for continued involuntary inpatient
688placement.  The request shall be accompanied by a statement from
689the patient's physician or clinical psychologist justifying the
690request, a brief description of the patient's treatment during
691the time he or she was involuntarily placed, and an
692individualized plan of continued treatment.  Notice of the
693hearing shall be provided as set forth in s. 394.4599. If at the
694hearing the hearing officer finds that attendance at the hearing
695is not consistent with the best interests of the patient, the
696hearing officer may waive the presence of the patient from all
697or any portion of the hearing, unless the patient, through
698counsel, objects to the waiver of presence.  The testimony in
699the hearing must be under oath, and the proceedings must be
700recorded.
701     (c)  Unless the patient is otherwise represented or is
702ineligible, he or she shall be represented at the hearing on the
703petition for continued involuntary inpatient placement by the
704public defender of the circuit in which the facility is located.
705     (d)  If at a hearing it is shown that the patient continues
706to meet the criteria for involuntary inpatient placement, the
707administrative law judge shall sign the order for continued
708involuntary inpatient placement for a period not to exceed 6
709months.  The same procedure shall be repeated prior to the
710expiration of each additional period the patient is retained.
711     (e)  If continued involuntary inpatient placement is
712necessary for a patient admitted while serving a criminal
713sentence, but whose sentence is about to expire, or for a
714patient involuntarily placed while a minor but who is about to
715reach the age of 18, the administrator shall petition the
716administrative law judge for an order authorizing continued
717involuntary inpatient placement.
718     (f)  If the patient has been previously found incompetent
719to consent to treatment, the hearing officer shall consider
720testimony and evidence regarding the patient's competence.  If
721the hearing officer finds evidence that the patient is now
722competent to consent to treatment, the hearing officer may issue
723a recommended order to the court that found the patient
724incompetent to consent to treatment that the patient's
725competence be restored and that any guardian advocate previously
726appointed be discharged.
727     (8)  RETURN OF PATIENTS.--When a patient at a treatment
728facility leaves the facility without authorization, the
729administrator may authorize a search for the patient and the
730return of the patient to the facility.  The administrator may
731request the assistance of a law enforcement agency in the search
732for and return of the patient.
733     Section 7.  The Department of Children and Family Services
734shall have rulemaking authority to implement the provisions of
735sections 394.455, 394.4598, 394.4615, 394.463, 394.4655, and
736394.467, Florida Statutes, as amended or created by this act.
737These rules shall be for the purpose of protecting the health,
738safety, and well-being of persons examined, treated, or placed
739under this act.
740     Section 8.  If any provision of this act or the application
741thereof to any person or circumstance is held invalid, the
742invalidity does not affect other provisions or applications of
743this act which can be given effect without the invalid provision
744or application, and to this end the provisions of this act are
745declared severable.
746     Section 9.  This act shall take effect January 1, 2005.
747
748
749================= T I T L E  A M E N D M E N T =================
750     Remove the entire title and insert:
751
A bill to be entitled
752An act relating to mental health; amending s. 394.455,
753F.S.; defining and redefining terms used in part I of ch.
754394, F.S., "the Baker Act"; amending s. 394.4598, F.S.,
755relating to guardian advocates; amending provisions to
756conform to changes made by the act; amending s. 394.4615,
757F.S., relating to confidentiality of clinical records;
758providing additional circumstances in which information
759from a clinical record may be released; amending s.
760394.463, F.S.; revising criteria for an involuntary
761examination; revising requirements for filing a petition
762for involuntary placement; creating s. 394.4655, F.S.;
763providing for involuntary outpatient placement; providing
764criteria; providing procedures; providing for a voluntary
765examination for outpatient placement; providing for a
766petition for involuntary outpatient placement; requiring
767the appointment of counsel; providing for a continuance of
768hearing; providing procedures for the hearing on
769involuntary outpatient placement; providing a procedure
770for continued involuntary outpatient placement; amending
771s. 394.467, F.S., relating to involuntary placement;
772conforming terminology to changes made by the act;
773providing for rulemaking authority; providing for
774severability; providing an effective date.


CODING: Words stricken are deletions; words underlined are additions.